The “tragic irony” of Texas’ abortion process for minors

Protestors holding signs of texas with the words the burden is undue

Jane*, a Texas teenager, plans to launch a career as an American Sign Language interpreter. This is after she gets her degree in communications. Or possibly, she’ll open a flower shop. The fact is, she’s excited about the possibility of both paths. But such hopes seemed to almost fade away this summer, when she discovered she was pregnant.

“That was the last thing I was expecting to find out,” Jane said. “It was a big shock to me. I told my boyfriend and we both decided it wasn’t a good time for us, and we decided the best thing for us would be to have an abortion.”

In May, she began calling clinics to schedule an ultrasound, the first step needed in Texas’ complicated and controversial laws surrounding minors accessing abortion care. Jane didn’t know how far along when she discovered her pregnancy, and as a result, wasn’t even sure what kinds of abortion options would be available for her. She said many clinics turned her away upon learning that she was a minor. But one instead referred her to the nonprofit Jane’s Due Process.

That clinic, she says, told her that JDP would be able to help with funding the procedure and in “getting a judicial bypass.”

It was the first time she’d ever heard the term judicial bypass, or heard of JDP. Both soon became essential for ensuring she was able to move towards the future she had planned for herself.

Jane’s Due Process, based in Austin, is the only organization in Texas committed to free legal representation to minors seeking a judicial bypass, the legal process by which a person under the age of 18 may have an abortion without written parental consent. For 16 years now, JDP has been connecting minors — or “Janes,” as they call them both within the organization and the legal system, as the bypass process is supposed to protect anonymity — with volunteer attorneys to help young people navigate their way through the legal system. The group helps pregnant minors get abortion care, should they find themselves unable to involve their parents in anything having to do with the procedure.

The organization was founded in 2001 after Texas moved from just having a parental notification law for minors seeking abortion care to a parental consent law in 1999. At that time, a group of attorneys started organizing to recruit attorneys who could take these judicial bypass cases on and train them to best advocate for their Janes in court. Today, there are just shy of 20 attorneys across Texas who work on a pro bono basis with JDP, representing young people in their fight for abortion access. But the work is not without its challenges.

“The worst year for denials that we have seen”

To be granted a judicial bypass in Texas — a state that also denies minors the right to access birth control without parental permission, unless they go to a publicly funded Title X clinic — a teen must go before a judge for a private hearing. Here, she must convince the judge that she’s mature enough to be able to decide for herself whether she can have an abortion.

The statute in Texas does recognize that parental consent might not be in the best interest of a pregnant minor in cases involving incest, sexual abuse or sexual assault — but for other pregnant minors, they find themselves in a situation where a judicial bypass represents the least bad option.

“On some level, people don’t understand that no one wants to be in this situation,” Jane said. “No one wants to go to court and tell a middle-aged man about their sex life.”

Further complicating the issue is that judges in Texas run, and are elected, with a party affiliation — and, often, a record of how they’ve ruled on cases of judicial bypass, which can often impact their ability to be re-elected.

“If you look at the way the law is written on whether a judge should grant a bypass, there isn’t a whole lot of room for wiggling there,” attorney Deena Kalai said. “If a minor is able to demonstrate that she is sufficiently mature and well-informed of her pregnancy options to make this decision for herself, she’s supposed to be granted a bypass.”

But “maturity” can often be an arbitrary determination. There have been court rulings that establish holding a part-time job or providing ongoing childcare for siblings, among other situations, as indicative of maturity.

And while Kalai — who represents women in and around the liberal enclave of Austin pro bono via JDP — said that she has personally never experienced a judge making a “wrong decision” in a bypass case, “we have examples all over Texas where judges just say ‘No,’” when the girls clearly qualify.

In 2016, 174 minors applied for a judicial bypass in Texas; of those, 133 were granted their bypass, while 27 had their request for a bypass denied, deemed denied or dismissed. Another 14 ultimately withdrew their requests.

JDP called 2016 “the worst year for denials that we have seen” — and pointed to the passage of HB 3994 in Texas at the end of 2015 as the culprit. Following a challenge to the bill that found its way to the Texas Supreme Court, the new law — which took effect on Jan. 1, 2016 — now revises the judicial bypass process so that if a judge fails or refuses to rule on a minor’s application for a bypass after five business days, the minor’s application is automatically denied.

As originally proposed in March 2015, HB 3994 simply deleted the provision in which a bypass was automatically granted, should a judge not rule on a case. The bill was passed by the Texas legislature in May 2015, signed into law by Texas Gov. Gregg Abbott in June 2015 — and then was sent to an advisory committee of the state’s Supreme Court for interpretation. Ultimately, the Texas Supreme Court took things one step further in December 2015 in interpreting the law, though, by not just allowing the provision granting the automatic granting of a bypass to be removed, but replacing it with an opposite automatic course of action.

The personal biases of judges are just the one of a number of structural challenges that young people face as they are seeking abortion care. In addition to the statutory requirement that minors obtain parental consent for birth control, a quarter of all schools in Texas no longer teach sex ed and over 60% teach from an abstinence-only curriculum.

Now, new changes to the laws surrounding judicial bypass have made it so that a minor now must file in her home county — a move that can often be enough stop someone in a rural area from pursuing a bypass altogether, if being recognized in a small community courthouse might reveal her status to the community.

Plus, the state already requires that people seeking abortions receive a sonogram 24 hours before receiving an abortion. The sonogram rule in Texas is only waived if that person lives more than 100 miles from “the nearest” abortion clinic, Elizabeth Nash, senior state issues manager at the reproductive and sexual health policy research group the Guttmacher Institute explained. The law also requires that the provider display and describe the ultrasound image to the person seeking abortion care.

“It’s really burdensome,” Garcia said. “You go to one judge and that judge might not listen. They’re coming in with their own preconceived notions, and you’re putting the young person in a position of having to trust and involve a person who does not know them, their circumstances and may not be able to get the full set of circumstances and information.”

In the anonymous post-bypass survey that JDP sends its clients, minors were forthcoming about how difficult the process is, when they were asked, “What part of the judicial bypass process did you find difficult?”

“Proving I was mature enough because I was afraid the judge wouldn’t approve the bypass,” wrote one respondent.

“Going in front of the judge and speaking with,” said another.

One Jane described having to talk to a judge as “scary;” another said she was “scared to talk to the judge.” A third said, “Speaking with the judge was so hard. It’s a little scary and you feel so vulnerable and exposed.

These barriers often only further delay minors in the process of accessing abortion care — and the further along a pregnancy, the more expensive and more potentially complicated an abortion is to perform.

Meanwhile, many of these minors are already at-risk: In 2016, 34% of JDP clients were orphans, had parents outside of the country or did not live with a parent or legal guardian. Another 30% feared being kicked out of their homes or being disowned for being pregnant while another 40% reported fearing emotional abuse from their parent or guardian. Twelve percent of Janes are already parents.

Eric Gay/AP

“A right is a right.”

The judicial bypass process is in many ways representative of the current trend playing out across the U.S. in state legislatures of restricting abortion access for minors and legal adults alike. In the past few years, an uptick has been seen in new state-level laws that place unnecessary regulations on abortion facilities and providers and mandate counseling and waiting periods, as well as an increase in nonscientific “fetal pain” laws and time bans on abortion care. These are all medically unnecessary restrictions on abortion access that disproportionately impact those already facing the greatest health and economic disparities.

Furthermore, research looking at Texas specifically has found that the implementation of the 24-hour waiting period law alone was reported by abortion patients as having had a negative effect on their emotional well-being. And Guttmacher research shows that women living in states with a mandatory waiting period are more likely than women living in states without one to have a delay of more than two weeks in accessing abortion care. And when it comes to abortion access, every day matters — especially in Texas, where abortion is already banned after 20 weeks postfertilization.

“These parental involvement laws are part and parcel to the larger picture we see of states enacting laws to obstruct women’s access to abortion care and many of those laws, including parental involvement laws, hit vulnerable people with the least access in the first place the hardest,” Andy Beck, a staff attorney with the American Civil LIberties Union’s Reproductive Freedom Project, said.

“We know that in an ideal family, we would want to see young women involve a parent when faced with an unwanted pregnancy,” Beck said. “But many families are far from ideal and we can’t legislate family relationships. These laws hit teens already unable to go to a parent the hardest: those in abusive households, those who would be kicked out or physically abused if their parent were to find out about a pregnancy.”

Kelli Garcia, a senior staff attorney with the National Women’s Law Center emphasized that abortion is a constitutionally protected right.

“Being a minor doesn’t change the constitutional protections you have and it doesn’t change the Constitution — a right is a right,” Garcia said. “And while the state has an interest in protecting minors, it can also infringe upon them by creating undue burden to a minor’s right to access abortion.”

Jane’s Due Process

This is how judicial bypass process often plays out in reality.

“The devil is in the details,” Beck said. “Many states have enacted laws related to judicial bypass that make it available in theory, but not in fact, with a process that is confidential and expedient in theory, but not in fact.”

Beck pointed to the ACLU’s recent challenge to an Alabama law that would have mandated that teens who go to court for a judicial bypass and end up being subject to a full trial — one which could involve her parents, the district attorney and an attorney appointed for the fetus. A federal judge ultimately blocked the state law under which such a trial could take place as part of the bypass process.

“That’s the exact opposite of what the law requires, which is why we challenged it and got it blocked,” Beck said.

Likewise, in June, a federal court blocked an Indiana law that infringed upon the anonymity of minors seeking waivers of parental consent in order to get an abortion.

“A bizarre catch-22”

The Jane in Texas who Mic spoke with described her parents as “very religious and quite against abortion.”

“I knew they would want me to keep the child,” she said. “And I knew at the time that it would interfere with my education and bettering myself and any child I bring into the world, I would want to have a good life. I couldn’t do that today.”

Garcia described it as “a bizarre catch-22.”

“You have to prove you are mature enough to make this decision for yourself, where the alternative is that if you are not mature enough to make this decision for yourself, then the judge says, ’Well, okay — you’re going to have to care for a child,” she said

Jane said that while the decision to have an abortion was ultimately hers, she did inform her boyfriend and the two did agree as a couple that they weren’t ready to be parents.

“He didn’t want me to be alone in going through this, but he also didn’t want any part of having a child,” Jane said of her boyfriend’s reaction to the pregnancy. “But that didn’t influence any part of my decision. I knew this was best for me.”

When she called JDP, they “completely helped with everything,” she said.

That said, like many before her, Jane said it was “nerve-wracking” to have to appear before a judge to ask that her bypass be granted as a result of having to talk “about something so personal in front of a judge who was an old man.”

“It doesn’t really feel so comfortable … feeling like I have to prove myself,” Jane said. “But the whole thing was really just a few minutes long, and afterwards I got what I needed.”

After having her bypass was granted, Jane said she felt total relief. “At this point, I couldn’t make any appointments for any procedures for the abortion until I had the bypass, so I didn’t even know which procedure I would make it in time for,” she said.

“I think judicial bypass helps minors who need to get the help they need for abortion without parents interfering,” Jane said, “Because not everyone’s parents agree with their child, and a parent not allowing this procedure can really ruin their child’s life. For me personally, it just helped me get past this situation I didn’t want to be in.”

J. Scott Applewhite/AP

But her story is relatively common in Texas.

“In smaller counties, people are reluctant to be known as ‘the abortion lawyer,’” JDP’s executive director Tina Hester said. She noted the times when JDP has to reach out within a given county of community to find counsel for a given Jane.

“We’ll look for people who have taken in family court cases before,” she said. “We’ve gone through ministers to help us find people in local communities who we hope will be amenable to taking the case. It’s always all hands on deck when we’re trying to find someone in a new county, because the work is so time sensitive.”

Kalai is a hotline volunteer in addition to a volunteer attorney, and she said on a typical shift working the JDP hotline, she’ll get anywhere from “a couple to half a dozen calls.” Many of those calling are just trying to get basic facts about how much an abortion costs or where you get one.

Frequently, the young women she speaks with are terrified of letting their parents know that they’ve become pregnant, for fear of deeply disappointing them or — as she often hears — being kicked out of the house.

“These girls aren’t being melodramatic — this is their reality,” Kalai said. “So many adults forget they were ever 16 or 17. So many don’t remember to have compassion for what it’s like to be that young and to not always make decisions from the most well-reasoned and well-thought-out place.”

Every time she speaks to a hotline caller or meets with a new client needing representation, she is struck by their maturity. “Many of these kids are working part-time jobs or completely sharing the responsibility of raising younger siblings in their homes,” she said. “Often they are very good students. So, they have the ability to work part-time, deal with family obligations, be good students and have the ability to navigate the court process.”

“I don’t think people understand how much leg work is required in young women getting to Jane’s Due Process in the first place,” Kalai added. “You’re getting yourself to a clinic. You’re getting yourself to court. You’re dealing with these transportation issues.”

Jane echoed this sentiment, explaining that she could never have imagined the amount of help she received from Jane’s Due Process. From the first time she called, she said she was met with nothing but compassion — and vital information. The group helped her with transportation and funding for her procedure, so she could limit her out-of-pocket costs.

Most significantly, she said, they offered “emotional support. They would always text me to ask me how I was. The attorney they gave me was so nice. I wouldn’t have been able to get through this without them.”

“It doesn’t make anyone reconsider abortion,” Kalai added of the bypass process. “If you’re determined to have an abortion, you’re going to do it and hopefully you’re going to do so in a way that’s safe.”

Hester emphasized that when a minor calls the JDP hotline, the average wait time between their initial intake and when they go before a judge is about five days.

The “tragic irony” of the judicial bypass process

Jane was granted her bypass exactly one week after first learning she was pregnant, and had her procedure performed over the two days after receiving her bypass. She said she is struck by the fact that had she not been granted her bypass this summer, she would be due to deliver a baby in two months, “a really scary thing to think about.”

Today, Jane lives with her boyfriend. She said that her bypass saved her relationship with her family.

“With my family, I don’t know what it would have done to our relationship. They don’t like me to be sexually active at all and if they found out I was pregnant, they would never look at me the same or really think of me as their daughter. For me, mentally, I don’t think I would be prepared for this at all.”

It’s a sham, Beck said, to say that these laws are about anything other than restricting access to abortion.

“When states are enacting these laws, the effect of it is to make abortion less accessible, and even more so for a particularly hard hit group of women in need of abortion services — teens who can’t go to their parents and face the risk of abuse, the risk of being kicked out of their home or worse,” he said.

This is the “tragic irony” of the judicial bypass process, he said.

“If she is not mature enough to make the decision to have an abortion, by default the court is saying that she has to become a parent,” Beck said. “Is that really the right outcome here? Isn’t it enough to determine maturity when you see a teen go to court and persuade a judge that she is not ready to become a parent? To me, that in and of itself demonstrates not just an incredible amount of bravery, but maturity.”

*Name has been changed to let sources speak freely on sensitive topics.